Excerpt: - .....it is tried or whether the parties are diligent or not diligent at any time and from time to time notice under rule 36 may go, and what is more the suit is liable to be dismissed for default, unless good cause is shown to the contrary. that version of the rule will not do at all. it has been drawn to our attention that this rule was altered in 1922. the old rule ran:suits and proceedings, in which no step has been taken for a year for their prosecution, or which have not appeared in the prospective list within six months from the date of institution.5. it is quite clear, as the rule originally stood, that the phrase ' in which no step has been taken for a year' means in which no step has been taken for a year previous to the time when action is being taken under the rule; and the.....

Judgment:

Rankin, C.J.

1. In this case the suit was brought on 14th January 1924, and in the same year, appearance was entered and one of the defendants was dismissed from the suit. Nothing much seems to have happened until January 1926, when another defendant was substituted and, in December of that year, an order for discovery was made. In February 1927 the defendants obtained leave to deposit a sum of money in satisfaction of their liability in Court and. on 5th April 1928 the case came before the learned Judge on the original side under Rule 36, Ch. 10 of the Rules of the High Court. On that occasion, the suit was not dismissed for default, but it was ordered to be put on the Warning List after the Easter vacation and it duly went into the Prospective List. On 24th May 1928, it was on the Peremptory List and came on for hearing and by consent, an order was made referring the matter in suit to the arbitration of an arbitrator. On 18th July, it appears that the order was served upon the arbitrator. On 31st July 1928 there was a petition for extension of time and, as the defendants refused consent to the extension of time no further proceedings seem to have been taken until 27th February 1930 when it appears that a notice was issued from the office of the Court purporting to be a notice under Rule 36, Chap. 10 of the Rules. The matter came before the learned Judge and it appears that a point was taken that the case was not, in these circumstances, within Rule 36 at all it being a case which had appeared on the Prospective List and actually had been the subject-matter of hearing before a learned Judge, who had directed the reference. My learned brother, Lort-Williams, J., was referred to two judgments of a Division Bench on appeal from the original Side-judgments which were binding upon him-and I observe that in one of those judgments, in the case of Bangsidhar Goenka v. Harmukhrai Ram Ballav Suit No. 889 of 1928, Decided on 12th April 1929 I said this:

I entirely demur to the suggestion that if a suit has taken more than six months to reach the Prospective List 'C' and long afterwards, when it is in the list, notice under Rule 36 is served, the notice is a good notice. The rule means that suits and proceedings, which have not appeared in the Prospective List within six months from the date of institution are liable to be dismissed in that position for default on notice to the parties or their attorneys.

2. The learned Judge says that the rule means that:

even where steps have been taken in the case quite recently, it may nevertheless be placed on the list, leaving it to the discretion of the Judge to decide whether in his opinion, it is a case which ought to be dismissed or one in which good cause has been shown to the contrary.

3. Accordingly, although this case has not only been in the Prospective List, but has been actually heard and an order made at the trial of the suit the learned Judge has said that, in his opinion it is. within the true meaning of the rule. I can only say that in my , opinion the learned Judge's interpretation of the rule is with great respect to him, impossible. The rule says that:

suits and proceedings which have not appeared in the Prospective List within six months from the date of institution may be placed before a Judge in Chambers.

4. 'Have not appeared'-at what time ?' It means-at the time when the suit is placed before the Judge in Chambers, it is then to be a suit which has not appeared in the Prospective List. The rule applies only to cases which at the time-action is taken, are not in the Prospective List and never were in the Prospective List. The interpretation that the learned Judge appears to have favoured seems to mean this that, if for any cause, a suit has not appeared in the Prospective List within six months from the date of institution, then whatever happens after that whether it appears in the Prospective List, whether it is tried or whether the parties are diligent or not diligent at any time and from time to time notice under Rule 36 may go, and what is more the suit is liable to be dismissed for default, unless good cause is shown to the contrary. That version of the rule will not do at all. It has been drawn to our attention that this rule was altered in 1922. The old rule ran:

Suits and proceedings, in which no step has been taken for a year for their prosecution, or which have not appeared in the Prospective List within six months from the date of institution.

5. It is quite clear, as the rule originally stood, that the phrase ' in which no step has been taken for a year' means in which no step has been taken for a year previous to the time when action is being taken under the rule; and the elimination of those words makes it little less obvious than before that the rule is intended to deal with cases which are not in the Prospective List and which are liable to be treated as being in de fault for want of prosecution because of the fact that they have not yet reached the Prospective List. The present case is plainly outside the rule. I may say that this rule operates by means of work done in the Court's office to find out what cases are water logged and are not being prosecuted properly. The reason why the words, to which I have referred were eliminated from the rule was doubtless that it put too great a burden upon the office of the Court to find out every case in which no proceedings had been taken within a year. It is comparatively easy to find out the date when a suit is brought and whether it has appeared in the Prospective List. The intention of the rule is that, soon after the lapse of six months, action if it is to be taken, should be taken under the rule. The position will then be that, after notice has gone, the party will not be able to cure the default by taking steps before the notice can be heard. The intention is that the Court's office should be able to look after this matter somewhat promptly and that soon after six months have elapsed, the matter should be brought before the learned Judge. This however cannot always be managed. Sometimes it happens that cases are not in the Prospective List for much more than six months and notices are issued even at the end of a year or two years after the institution. If by this time the case has not reached the Prospective List, the rule no doubt applies. But the moment the case has once reached the Prospective List, the particular provision which is contained in Rule 36 no longer applies. There is nothing in Rule 36 which prevents a party from taking out summons to have a suit dismissed for want of prosecution in a proper case.

6. In my judgment therefore the appeal must be allowed and by consent of parties the order of reference is superseded, and it is directed that the case do go into the Warning List at the end of the Long Vacation. No order is made as to costs either before the learned Judge or before us.